Family and Matrimonial

Divorce and Foreign Residence: Children

When a marriage breaks up, it is usual for the couple to separate physically as well as legally and in some cases the physical separation can be considerable. With the increase in international travel and residence abroad, marriages between persons of different nationalities are becoming increasingly common.

When a couple divorces and one of them wishes to return to their country of origin, this can cause particular problems where there are children. Strictly, it is a criminal offence for a divorced or separated person to take a child under the age of 16 abroad contrary to the wishes of their spouse, unless they have a residence order in respect of the child. This is taken very seriously by the courts. In a recent case a man had his daughter removed to the Middle East and claimed he then did not know her whereabouts, thus failing to comply with an order of the court to return the child to the UK. The court imposed a custodial sentence and then reimposed when it had been served, for contempt of court. See the CAFCASS guide on international child abduction.

Recently, a number of cases have tested the limits of the previously established rule as regards taking children abroad, which was that permission should only be denied when there was a strong reason for so doing. This rule appears to be less strictly applied than before. A 2013 case confirmed that it was possible for child who had never set foot in the UK to be regarded as hibitually resident in the UK and thus subject to UK law.

When a parent wishes to relocate children within the UK, problems can arise if the other parent objects to the move. In a recent case, an application by a mother to move her children to the Orkney Islands from the North East was objected to by her ex-husband. Evidence was given of the mixed views of the proposed move held by the children, who were between nine and 14 years old.

The Court of Appeal supported the family court’s ruling that the move should not proceed.

A second case, involving a man who sent his daughter abroad and refused to return her in defiance of a court order to do so, led to his being jailed for contempt of court. In late 2012, the child was returned to the UK. A 2017 case in Scotland prevented an English mother returning to England with a baby child, the court ruling that by requiring the mother to remain resident in Scotland, the child would have the benefit of having both parents involved in its upbringing. Similar reasoning was used in a London court when a mother hailing from the West Country was refused the right to move with her children to live near her family and take up a job she had been offered because it would make their father's involvement difficult.

Regrettably, there are no hard and fast rules about what the courts will or will not think is acceptable in the event that a move (especially one to a quite different locality) is proposed, with each case being decided on its own facts.

In 2012 the UK improved the ability of parents to enforce residence orders if their children have been taken to a foreign country, when the provisions of the 1996 Hague Abduction Convention came into effect.

A 2013 case confirmed that where a foreign court has no outstanding matters before it with regard to the residence of a child, the UK court does not need the foreign court to formally renounce jurisdiction if the child concerned has become habitually resident in the UK.

In 2013 and 2014 a number of cases were heard which have established that 'habitually resident' largely equates to 'belongingness' and this depends on factors such as where the child is best integrated and the nationality of the child.

In the Summer Budget of 2015, the inheritance of the foreign domicile of the father for UK-born children was abolished and the concept of domicile was amended (similarly to the way it operates for Inheritance Tax) to remove foreign domicile from long-term UK residents.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.